Plaintiff's Brief Filed in Rose Street Lawsuit

By Becky O'Malley
Thursday October 07, 2010 - 10:54:00 PM

The first shot has been fired in the suit filed by Berkeley Hillside Preservation, an unincorporated association, and neighbor Susan Nunes Fadley against the city of Berkeley and the City Council, with architect Donn Logan and his clients, software mogul Mitchell D. Kapor and his wife Freada Kapor-Klein named as real parties in interest. 

Attorney Susan Brandt-Hawley has filed a petition for a writ of mandamus to require the city to conduct the appropriate environmental review of the project proposed for a steep site at 2707 Rose Street. 

Berkeley Hillside Preservation is asking the court to require the City to conduct an environmental impact review (EIR), as mandated by the California Environmental Quality Act (CEQA). 

The project was approved by the Zoning Adjustment Board in late January, and the City Council subsequently refused to overturn it on appeal. 

Judge Frank Roesch will conduct the first hearing of the case in Alameda County Superior Court on December 2. 

The introduction to the attorney’s opening brief summarizes the plaintiffs’ argument: 

Single-family homes are usually exempt from CEQA’s purview, and rightly so. When a modest construction project will not have significant impacts, there is no need for environmental review or public scrutiny. 

This case, on the other hand, presents a monumental exception. On a steep wooded hillside on a narrow street in the seismically-vulnerable Berkeley hills, a 10,000 square foot structure with underground parking for 10 cars is proposed as a two-person residence and as a venue for philanthropic events. 

Everyone admires philanthropy, and the right to build a home is sacrosanct. But this is not a typical low-impact single-family home that rightfully qualifies for a CEQA exemption. There is abundant record evidence that the project’s massive size in its constrained location may result in significant environmental impacts. An extant 1917 Craftsman bungalow is to be demolished and the new home would be among the five largest ever built among the 17,000 single-family residences in Berkeley. 

Most of the unique historic homes in the vicinity are 80% smaller, and the record reflects wide community insistence on environmental review and mitigation of the project’s hotly-disputed aesthetic, geotechnical, historic, and traffic impacts. 

Yet a split Berkeley City Council refused to require environmental review, and instead approved the project’s four discretionary use permits based on CEQA’s categorical exemptions for single-family homes and urban infill. This was unlawful. Categorical exemptions are rebuttable and are disallowed upon a low-threshold “fair argument” — abundantly provided here —that a project may have a significant environmental impact. 

To be clear: the Court is not being asked to weigh in on the beauty versus banality of the project’s utilitarian box design or even its size. Opinions differ. A peremptory writ is sought because the City Council asserted categorical exemption from CEQA and failed to conduct any environmental review before approving multiple discretionary use permits. Petitioners simply seek a public CEQA process to inform City consideration of permit approvals, alternatives, and mitigation measures. This Court’s peremptory writ will require the City to fulfill its duty to conduct the salutary environmental review mandated by CEQA. 


The full text of the brief can be found here, and past articles about the controversy are listed here.